Challenges and Problems on Chinese Work against Torture. For Examination of the State Report of the People s Republic of China on

Similar documents
International Covenant on Civil and Political Rights 1 Adopted 16 December 1966 Entered into force 23 March 1976

CHILDREN S RIGHTS - LEGAL RIGHTS

LEGAL RIGHTS - CRIMINAL - Right Against Self-Incrimination

Chapter 8 International legal standards for the protection of persons deprived of their liberty

Introduction to the Main Amendments made to the Criminal Procedure Law of the PRC 1996 Professor Fan Chongyi China University of Politics and Law

From National Human Rights Action Plan to read Chinese government s attitude toward the new criminal procedure reform

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Human Rights Council. Protection of human rights and fundamental freedoms while countering terrorism

Resolution adopted by the Human Rights Council on 29 September /16. Human rights in the administration of justice, including juvenile justice

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT NO 108 OF 1996

International Standards and Norms on Juvenile Justice and law reform

Resolution adopted by the General Assembly. [on the report of the Third Committee (A/65/456/Add.2 (Part II))]

Consideration of reports submitted by States parties under article 40 of the Covenant. Concluding observations of the Human Rights Committee

Italy s contribution pursuant to HRC resolution 24/16 on The role of prevention in the promotion and protection of human rights

Appendix II: Legal Provisions

NATIONS UNIES HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L HOMME UNITED NATIONS OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

UNITED NATIONS HUMAN RIGHTS COUNCIL. Working Group on Arbitrary Detention

JORDAN Stakeholder Report for the United Nations Universal Periodic Review

What Are Human Rights?

QATAR: BRIEFING TO THE UNITED NATIONS COMMITTEE AGAINST TORTURE 49 TH SESSION, NOVEMBER 2012

HUMAN INTERNATIONAL LAW

Human Rights A Compilation of International Instruments

INTERNATIONAL STANDARDS ON THE DEATH PENALTY

The Rights of Non-Citizens

9 November 2009 Public. Amnesty International. Belarus. Submission to the UN Universal Periodic Review

Concluding observations on the third periodic report of Belgium*

Consideration of reports submitted by States parties under article 40 of the Covenant. Concluding observations of the Human Rights Committee

Resolution adopted by the General Assembly on 18 December [on the report of the Third Committee (A/68/456/Add.2)]

Contribution of Cyprus to the OSCE Conference on Racism, Xenophobia and Discrimination, 4-5 September 2003

Education as a Human Right in the United States. Human Right to Education Program National Economic and Social Rights Initiative (NESRI)

CONVENTION AGAINST TORTURE & OTHER CRUEL INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT and its Optional Protocol

Convention on the Elimination of All Forms of Discrimination against Women

No. 42. Contents. Request Made to the People's Republic of China for Extradition. Section 2 Submission of the Request for Extradition

PALAIS DES NATIONS 1211 GENEVA 10, SWITZERLAND

PREAMBLE The UN UNIVERSAL DECLARATION OF HUMAN RIGHTS

Written contribution for the UPR working group of CUBA

Resolution adopted by the General Assembly. [on the report of the Third Committee (A/66/462/Add.3)]

A review of laws and policies to prevent and remedy violence against children in police and pre-trial detention in Bangladesh

Ensuring protection European Union Guidelines on Human Rights Defenders

Resolution adopted by the General Assembly on 18 December [on the report of the Third Committee (A/69/488/Add.2 and Corr.1)]

The Shariat Court of Azad Jammu and Kashmir. Re. Naheem Hussain and Rehan Zaman

Amendments to China s Criminal Procedure Law May Impact Enforcement and Defense of Bribery and Corruption Cases in China

Uzbekistan Submission to the UN Universal Periodic Review

List of issues in relation to the report submitted by Gabon under article 29, paragraph 1, of the Convention*

Joint study on global practices in relation to secret detention in the context of countering terrorism. Executive Summary

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

INTER AMERICAN CONVENTION TO PREVENT AND PUNISH TORTURE

June 30, Hold Security. g civil war. many. rights. Fighting between. the Sudan. and Jonglei

Shadow Report on Chinese Legislative Restrictions on the Death Penalty. And their Application

Committee on the Rights of the Child - Working Methods

DISCUSSION OUTLINE. Global Human Rights

Consideration of reports submitted by States parties under article 19 of the Convention. Concluding observations of the Committee against Torture

30/ Human rights in the administration of justice, including juvenile justice

INDONESIA Recommendations to Indonesia s Development Assistance Partners

CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

TREATMENT OF EXTRADITED PERSONS AND THEIR RIGHTS DURING PROCEDURES ON INTERNATIONAL JUDICIAL COOPERATION IN CRIMINAL MATTERS

UNIVERSAL DECLARATION OF HUMAN RIGHTS

REPORT FORM PROTOCOL OF 2014 TO THE FORCED LABOUR CONVENTION, 1930

PSNI Manual of Policy, Procedure and Guidance on Conflict Management. Chapter 1: Legal Basis and Human Rights PB 4/13 18 RESTRICTED

DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

HUMAN RIGHTS FIRST SUBMISSION TO THE OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS

Argentina, Chile, Ecuador, Guatemala, Indonesia, Mexico, Turkey and Uruguay: revised draft resolution

UNIVERSAL DECLARATION OF HUMAN RIGHTS

Consideration of reports submitted by States parties under article 19 of the Convention. Concluding observations of the Committee against Torture

RIGHTS OF THE ACCUSED. It is better to allow 10 guilty men to go free than to punish a single innocent man.

AMNESTY INTERNATIONAL

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

IV. HUMAN RIGHTS TREATY BODIES

From The European Association. of Jehovah s Christian Witnesses. Contribution to the Report of the U.N. High Commissioner for Human Rights

Czech Republic NATIONAL PREVENTIVE MECHANISM (Art of the OPCAT)

Degrading strip search procedures by law enforcement agencies

SUMMARY OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Consideration of reports submitted by States parties under article 9 of the convention

CHINA SUBMISSION TO THE NPC STANDING COMMITTEE S LEGISLATIVE AFFAIRS COMMISSION ON THE DRAFT SUPERVISION LAW

International covenant on civil and political rights CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT

CCPR/C/MRT/Q/1. International Covenant on Civil and Political Rights. United Nations

Universal Declaration of Human Rights

Convention on the Elimination of All Forms of Discrimination against Women

Submission to the United Nations Universal Periodic Review of LEBANON

Government Gazette REPUBLIC OF SOUTH AFRICA

International Human Rights Instruments

National Program for Action to Raise Effectiveness of the Protection of Human Rights and Freedoms in the Republic of Azerbaijan

Concluding observations of the Human Rights Committee ZAMBIA UNEDITED VERSION

Concluding observations on the second periodic report of Cambodia*

Concluding observations on the combined sixth and seventh periodic reports of Luxembourg*

The Universal Declaration of Human Rights

Open Letter to the President of the People s Republic of China

Tunisia: New draft anti-terrorism law will further undermine human rights

Official Journal of the European Union. (Legislative acts) DIRECTIVES

KEYNOTE SPEECH. by Thomas HAMMARBERG. Council of Europe Commissioner for Human Rights

UNIVERSAL DECLARATION OF HUMAN RIGHTS KEY DATES

PALAIS DES NATIONS 1211 GENEVA 10, SWITZERLAND

Widely Recognised Human Rights and Freedoms

Teacher Materials for the Universal Declaration of Human Rights

Official Journal of the European Union. (Legislative acts) DIRECTIVES

to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

B I L L. wishes to enshrine the entitlement of all to the full range of human rights and fundamental freedoms, safeguarded by the rule of law;

UNITED STATES OF AMERICA

E5 Human Rights Policy. Kelda s Human Rights policy applies to every Kelda employee and is based on the following key principles:

Transcription:

Challenges and Problems on Chinese Work against Torture For Examination of the State Report of the People s Republic of China on 41 st Session of the Committee Against Torture By the China Society for Human Rights Studies Beijing, P.R.China Address: Room 503, Richland Court, 199 Chaoyangmen Neidajie, Beijing P.R.CHINA Tel.+86-10-65592307 Fax. +86-10-65592354 Email: chinahrs@public.bta.net.cn Beijing, P.R.China 30 September 2008 1

1. The China Society for Human Rights Studies (CSHRS) founded in January 1993 is the largest national non-governmental organization in the field of human rights studies in China. It is a member of the United Nations Conference of Non-governmental Organizations, which enjoys a special consultative status with the United Nations Economic and Social Council. It is included in the World Directory of Human Rights Research and Training Institutions compiled by the United Nations Educational, Scientific, and Cultural Organization. The activities and tasks of the CSHRS are: studying the theories, history and status of human rights in China and overseas; popularizing and publicizing human rights knowledge; engaging in relevant international exchanges and cooperation; and promoting the healthy development of human rights in China and the world as a whole. 2. CSHRS persistently insists the stance against torture and other cruel, inhuman or degrading treatment or punishment (hereafter torture ) according to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter the Convention ). For a long time, CSHRS unites universities, academic institutions and other NGOs and raises criticism, opinions and proposals to the governmental and judicial organs in order to promote the sustainable achievement and progress in this regard. 3. CSHRS holds that torture is serious violation of basic human rights and human being dignity which is intolerable under modern civilization and rule of law. Though there is extensive awareness and many measures to stop it, torture still exists in some areas and some organs in China and needs our unremitting efforts to prevent, prohibit and punish the conduct of torture. CAT is one of the significant UN human rights treaties and consequently constitutes part of the important content of our human rights studies and activities. I. Problem of Legal Framework of Chinese Law Against Torture 4. China has established its domestic legal framework against torture. 5. Article 37 of the Chinese Constitutional law provides that: The freedom of person of citizens of the People s Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people s procuratorate or by decision of a people s court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited. This provision concerning anti-torture in Constitutional law is justification for other anti-torture legislation and judicial practices. 2

6. There are seven crimes related to torture in the Chinese Criminal Law as follows, the crime of unlawful detention, the crime of illegal search, the crime of retaliation and frame-ups, the crime of extorting a confession by force, the crime of extracting testimony from witness by violence, the crime of abuse of inmates, and the crime of abuse of subordinates. 7. Article 12 of Chinese criminal procedure law establishes the principle that no person shall be found guilty without being judged as such by a People's Court according to law. Article 43 strictly forbids prosecution of crime by torture in the criminal procedure. Both article 61 in the Interpretation of the Supreme People's Court on Some Issues Concerning the Implementation of Criminal Procedure Law of the People's Republic of China and article 265 in the Rules of Criminal Procedure of the People's Procuratorate reaffirm the above provisions and further establish the illegal evidence exclusion rules. 8. In addition to the substantive law and procedure law mentioned above, Police Law Judges Law Public Procurators Law State Security Law and Prison Law have special provisions regarding the prohibition of torture so as to safeguard the human rights of all citizens. State Compensation Law makes provisions of the state compensation to the victims of torture. These provisions further enhance the tight legal system for the anti-torture at maximum 9. CSHRS is of the view that though the domestic legal framework has been established, some of the relevant rules are abstract, without clear definition and sound implementation mechanism. So, it is necessary to improve and develop the legislation with reference to the CAT and according to Chinese realities of social development.. 10. Meanwhile, enforcement of the laws is also very significant. Legislation or policy making itself cannot resolve the problem completely. Implementation and supervision of the laws should be emphasized. 11. On the international law, CAT is the most important legal source. During recent years, plentiful research achievements have bee made. Monographs 1 and doctoral papers 2 on CAT are published. CAT is incorporated into the teaching content in law school of universities, and on training courses for governmental and judicial officials. CSHRS has organized seminars and training meetings together with China Law Society and China Prison Studies Society for the police and criminal law enforcement officials of departments of justice for several times, in order to promote awareness and education concerned. Many international and domestic 1 For example, Chen Yunsheng, Walking toward Human rights and Rule of Law: Studies on Prohibition of Torture, in Chinese, published by Publishing House of Chinese Academy of Social Sciences, in 2003. 2 For example, Wang Guangxian, Theories and Practices on Prohibition of Torture from Perspective of Combination of International and Domestic Supervisions, in Chinese, published by Shanghai People s Publishing House, in 2003. 3

seminars directly on CAT are also hold very often in China. 3 12. There are also relevant provisions against torture in other human rights treaties such as the International Covenant on Civil and Political Rights signed by China in 1998 and the International Convention on Rights of the Child ratified by China in 1992. Relevant provisions in different human rights treaties are regarded as a whole when we conduct human rights education and awareness-raising activities. 13. As to the CAT, one important problem is that just as other international human rights treaties ratified by China, it cannot be quoted in decisions of the courts. Therefore, risks may occur as follows: (1) if the international standards cannot be sufficiently incorporated and transferred into domestic laws, they cannot be applied inside the Member State effectively; (2) it is not conductive for the judicial officers and the society to dealing with torture issue from the human rights perspective. 14. CSHRS attaches great significances to the CAT for law enforcement and judicial process in China. Domestic application of the CAT and enforcement of the Chinese domestic laws mentioned above are two interactive and supplementary processes. 15. CSHRS also pays much intention to the domestic enforcement of the CAT, including the State report submission by Chinese Government to the CAT Committee. During the drafting process, CSHRS participates actively and persuades and mobilize relevant governmental organs, judicial organs, other institutions and scholars to make their contribution. 16. As to the State reporting mechanism, the problem is that both many of the law enforcement officials and NGO persons do not know much about this mechanism. Though many of them are interested in and pay much attention to this procedure, the quality of participation is not high. So, it is urgent to strengthen the capacity building for them. They should be able to attend the drafting of the State Report effectively and adopt follow-up actions based upon the Concluding Observations adopted by the CAT Committee. 17. Though the latest Chinese State Report submitted to the CAT Committee accommodated more opinions from NGOs than before, CSHRS is of the view that there are still potentials and spaces to enlarge and deepen the participation of the NGOs. 18. Meanwhile, though the new Chinese State Report provides relatively comprehensive information concerned, to provide concrete information, CSHRS 3 For example, from August 12 to 13, 2006, Sino-Europe International Meeting on CAT and its Optional Protocol sponsored by Center for Proceeding System and Judicial Reform Studies, China People s University and Britain-China Association was hold in Beijing. More than 100 scholars, practitioners, and judicial officials from China and abroad attended the meeting. 4

holds that classified statistics work should strengthened. II. Challenges Faced by China on Efforts against Torture 19. CSHRS is of the view that torture is not just legal issue, but also social issue. Fight against torture cannot be won overnight or at one fling. It is a long-time task. Improvement of the awareness of human rights, system reform and institutional construction becomes inevitable channel for prohibition of torture in the future in China. 20. The legal purpose of respect and protection of human rights shall be fully established. For a long time, during the process of criminal prosecution, the idea of social defense prevailed the idea of protection of human rights. The society paid more attention to finding out the substantive facts with less emphasis on respecting the rights of the defendants, which might foster the occurrence of torture in practices. With inclusion of the protection of human rights into the Constitution, it is expected that more and more attention paid to the balance of the human rights protection and social defense, more emphasis on functions of the human rights protection in the course of criminal prosecution and more focus on safeguarding the right of the accused and strictly limiting the state public power. CSHRS calls that through the second revision of the Chinese Criminal Procedure Law, the principles of the presumption of innocence and not to be forced into self-incrimination will be established and fully implemented. 21. The principle of trial centered criminal procedure needs to be fully established. For a long time, due to the impacts of such factors as historical tradition and the poor investigative techniques, confession of the accused played an important role in criminal prosecution. To some extent, excessive attention to the role of confession of the accused might lead to the happening of torture. In recent years, CSHRS has witnessed that the law enforcement departments are trying to change the confession-emphasized working model. CSHRS recommend that in addition to establishing illegal evidence exclusion rules, the government should promote the improvement of the investigative techniques to change the law enforcement officials stereotyped thinking pattern, to establish the mechanism for procedural decision, to establish the system of the separation of investigation and detention gradually and finally to realize the principle of trial centered criminal procedure. 22. CSHRS also calls the social mechanism against torture to be established. Other than the role of the government, actors such as NGOs, media and individuals can also display very valuable roles, because prohibition of torture is to eliminate any cultural ideas or tradition which supports it and to constitute social and public 5

pressures to keep zero tolerance of torture. 23. Once torture occurred and was exposed by media, it would result in big social resounding. Though there is extensive awareness against torture, there is still a long way to go for the fight to prohibit torture. CSHRS strongly calls that during the process of strengthening democracy and rule of law led by the government, the social actors, especially NGOs, should be mobilized to greatest extent. The work against torture should be composed of prevention, prohibition and punishment of torture, supported by joint efforts, and subject to social supervision. 6